Frank Gifford, The NFL Concussion Lawsuit, and Justice for Brain-Injured Players – posted 11/29/2015 and published in the Concord Monitor 12/6/2015

This piece appeared in the Concord Monitor on 12/6/2015 under the title “Devastating Hits”.

With the passing of legendary football star Frank Gifford, chronic traumatic encephalopathy or CTE claimed its most famous victim. CTE is a progressive, neurodegenerative disease found in people who have experienced a history of repetitive brain trauma. It is marked by depression, anger, disorientation, memory loss and suicidal ideation. It is being increasingly recognized as the signature brain injury suffered by NFL players.

Gifford, the former New York Giants running back and Monday Night Football broadcaster, died in August. The Gifford family announced that Gifford had “experienced firsthand” symptoms associated with CTE. The family decided to have Gifford’s brain studied in the hopes of contributing to the advancement of medical research concerning the link between football and traumatic brain injury.

The Gifford family did not offer specifics but they said that they suspected he was suffering from the debilitating effects of head trauma. A team of pathologists confirmed the CTE diagnosis. At this point CTE can only be diagnosed after a person’s death.

Being from Philadelphia and being an Eagles fan, I watched on TV and saw the famous, vicious hit Eagles’ player Chuck Bednarik delivered on Gifford in November 1960 at Yankee Stadium. Gifford was knocked unconscious and he lay flat and absolutely still on the field. Sam Huff, a great Giants linebacker, has been quoted saying at first he thought Gifford was dead. The play became an iconic NFL image.

Gifford spent ten days in the hospital after the hit and he missed the entire following season. Gifford did return to football in 1962 and he played two more seasons. He played twelve years in the NFL altogether.

I would note that Bednarik, who also died this year, had a reputation as one of the toughest players to ever play the game. A Hall of Famer, Bednarik, nicknamed Concrete Charlie, was one of the few players to play both ways. He was a center on offense and a middle linebacker on defense and he often played the whole game. Interestingly, after he died the Eagles released a statement saying he died after a “brief illness” but Bednarik’s eldest daughter disputed that. She said he had Alzheimer’s disease and she said he had been suffering from dementia for years.

It is hard to know what the effect of one particularly vicious hit can be but Gifford took that one devastating hit as well as many others in his career and he was known for never wanting to be taken out of a game.

NFL Commissioner Roger Goodell predictably responded to Gifford’s death. Recognizing his many contributions, Goodell praised Gifford for his efforts to improve safety in the game and for helping the medical community understand more about CTE.

The thing that was left out by Goodell was the fact that the NFL, under his leadership, continues to fight to exclude CTE as a compensable injury in the lawsuit filed by former NFL players. While Goodell has been rightly criticized for many other decisions like Ray Rice and Deflategate, I think the NFL’s exclusion of CTE is his most pernicious mistake. It could end up hurting thousands of former players who have or will eventually obtain a CTE diagnosis.

The NFL players’ lawsuit is currently before the Third Circuit Court of Appeals. The federal court approved a settlement agreement between the NFL Player’s Association and the League but 90 players have appealed the agreement. Oral arguments were just held. Whatever the outcome at the Third Circuit, I think it is very likely the case will be appealed to the U.S. Supreme Court.

The problem with the NFL settlement agreement is that the great majority of retired football players experiencing physical, emotional, and behavioral impairments following a history of repetitive concussions would not be compensated. The agreement compensates certain discrete, small groups. Those with ALS, Alzheimer’s, and Parkinson’s will be well-compensated. Those who suffer some of the most disturbing symptoms, mood and behavioral disorders, will not be compensated.

Those players who suffer from CTE face a narrow window. If you die after April 22, 2015, the date of the concussion settlement in federal court, and you obtained a CTE diagnosis, you and your estate get zero. If you died before April 22, 2015, and you had a CTE diagnosis, you and your estate would obtain up to $4 million.

That result is neither fair nor equitable. No one alive now would ever receive future compensation for CTE under the agreement as it stands. The NFL is among the deepest of deep pockets and its litigation strategy is designed to save it maximum dollars at the expense of its brain-injured players.

A wild card in this settlement is the relatively primitive state of brain science around concussions. Much knowledge has been gained in the last 20 years, including an awareness of the existence of CTE, but the science is in its early stages. Scientists predict that within the next five to ten years, CTE will be able to be diagnosed in the living.

The settlement agreement does not include an adequate provision about scientific advances. It only requires the settling parties to “meet at least every ten years and confer in good faith about possible modifications”. The NFL would retain veto power over any prospective changes. You don’t have to be a cynic to know in what a weak position this provision would leave brain-injured, former players.

Earlier this year, a study done by researchers at Boston University and the Department of Veterans Affairs found that out of 91 former NFL players’ brains examined, CTE was found in 87. Dr. Ann McKee, the chief of neuropathology at the VA Boston Healthcare System stated that these latest numbers are “remarkably consistent” with past research.

It would appear that the NFL, which previously tried to manufacture doubt about the existence of CTE, is now ignoring clear findings at least as far as litigation is concerned. The almighty dollar rules. In the tension between making money and player safety, the balance tips toward money even where the cost of safety is a relative pittance compared to the wealth of the league.

I suppose in fairness I should acknowledge some positive steps the NFL has taken regarding player safety. It has adopted important concussion protocols. If it is suspected that a player has suffered a concussion, the player is supposed to be removed from the field for a medical evaluation. Prior to a return to play, the player must have returned to baseline status, including cognitive and balance functions. He also must be cleared by the team physician and an independent neurological consultant.

As the recent situation with Rams quarterback Case Keenum showed, there can be problems with the implementation of the protocol. In a game against the Ravens, Keenum stayed in the game for several plays after he was concussed. Keenum had taken a sack and he appeared woozy after he was slammed into the ground. At first he could not get up. The Rams have failed to provide a good explanation for why he was not pulled from the game.

That situation is hardly different from many others. Possibly readers remember the hit Julian Edelman took in the Super Bowl last year. Kam Chancellor of the Seahawks smashed Edelman in what appeared to be an illegal helmet-to-helmet hit as he was going over the middle. Edelman continued to play. After popping up after the catch, he ran about ten yards and stumbled down, appearing dazed as he tried to regain equilibrium. Although Edelman showed signs listed by the concussion protocol, the Patriots and concussion observers let him stay in the game. When asked about it after the game, Edelman responded, “We’re not allowed to talk about injuries.”

I think there are at least two real factors which work against the concussion protocol. Teams want to keep key players on the field as long as possible to enhance the chance to win. I think that was going on with Edelman in the Super Bowl. Players are also reluctant to acknowledge their concussions. Players desperately desire playing time. They may feel that toughing it out during times when they have headaches or concussion-like symptoms is a necessity as their careers hang in the balance. For so many players, football may be their best ticket out of a life of relatively low wages and obscurity and I expect they feel the risk is worth it.

Last week Reggie Bush, the Lions running back, likened NFL games to being in a car crash. That is not a bad analogy as in both situations the brain sustains a blow where it is moving rapidly inside the skull. In that context, Bush was lamenting Thursday night games because players who have to play in those games do not have enough time to recover from the previous Sunday game. It is well known that players and coaches generally hate Thursday night games because of the lack of recovery time but the TV ratings and money have led the NFL to expand those games. This is another one of those bad, profitable decisions the League makes dictated by the bottom line.

On Christmas Day, the new Will Smith movie, Concussion, will open around the country. The movie is about a forensic pathologist’s efforts to publicize CTE. It dramatizes how the NFL suppressed research on the brain damage suffered by pro football players. It could not be more timely. So many people play football at all levels in the United States that we, as a society, do need to think about the public health implications of so much possible brain injury.

In our era, an almost ghoulish love of money remains a dominating value. Billionaires want more billions and never can get enough. NFL teams share that obsession but they should not do it in a way that treats players like they are simply a disposable commodity. Justice for the brain-injured players is a matter of fundamental fairness.